In New Jersey earlier this year, a police officer noticed a man
who appeared to be of Middle Eastern descent dressed in business
clothes near a vital bridge.

The officer approached the man and found out he was wearing a
wet suit under his business suit and carrying a knife and an
underwater camera.

Highly suspicious, but not illegal.

About the same time, a man approached a border crossing in
Texas. Officials checked the Terrorist Screening
Center's watch list of suspected terrorists and found the
man's name was on it. The list is not an arrest warrant; it merely
warns officials that certain people should be denied entry to the
United States.

The man in New Jersey was questioned and released. The man on
the border was denied entry. He would be turned back at three other
points of entry over the next several days.

Both cases highlight a new challenge for those who seek to
prevent terrorism and adhere to the United States' high standards
for civil liberty and rule of law. In both cases, we did not
have enough information to arrest the people, let alone to convict
them of anything. Indeed, both were set free even though both
clearly seemed to pose a threat to American security.

Then, there are suspects such as Zacarias Moussaoui, the
alleged 20th hijacker. The government had enough evidence to arrest
him and bring him to trial. But criminal trial rules require he
have access to witnesses who could dispute the government's
charges. One problem: the witnesses he requested -- two of the
top-ranking people in al Qaeda -- can't be produced by
the government because they are being held and questioned on other
matters and because of the security concerns a court appearance for
them would raise.

Then, there are the cases where reliable intelligence
information comes in a form -- hearsay -- that is utterly
unacceptable in criminal proceedings.

Right now, we handle these and similarly complicated situations
on an ad hoc, case-by-case basis, which is not consistent with the
American concept of justice. We need a system that brings
consistency to the process and strikes the proper balance between
security and civil liberties.

In other words, we need an entirely new legal architecture
designed specifically for this purpose. And we need it now --
before another terrorist attack on American soil enflames the
public and makes striking the proper balance nearly impossible.

A new system that allows preventive detention --
holding people without meeting the traditional burdens of proof
required in criminal proceedings -- should be limited solely to
those suspected of terrorist acts. Terrorist acts should
be defined narrowly as those that involve the threat of violence
and/or risks to the health and safety of the public, that are
designed to force a change in government policy or intimidate the
public, and/or that are taken to advance a political, religious or
ideological cause.

Only the U.S. attorney general should be able to certify people
for preventive detention. And to do so, even he must be able to
declare that credible evidence exists that the person in question
plans to commit a terrorist act or clearly is affiliated with a
terrorist organization. Even then, this system should be used only
when applying the existing criminal-justice system would compromise
national security.

Further, the certification must be subject to review in court,
and the suspected terrorist should have the right to a defense
attorney. The detainee should be presented a notice of the reason
for detention and the underlying factual basis, and he or she
should have the opportunity to rebut the evidence before a neutral
decision maker, perhaps similar to judges in the Foreign
Intelligence Surveillance Court.

Rules of evidence may be modified to protect national security.
But the government would bear the burden of proof of establishing
the necessity of detention by clear and convincing evidence. The
government may be permitted to delay this procedure to continue
interrogation of some suspects, but these delays ought not exceed
30 days.

Our goal should be to maximize both order and liberty. We do
that best not by closing our eyes to the necessity of security, nor
by allowing security concerns to run rampant without oversight. We
do it by taking steps to ensure government power is exercised
thoughtfully and with deep care. A well-designed system of
preventive detention can do that.

James Jay Carafano, a 25-year veteran of the armed forces, is a
senior research fellow in defense at The Heritage Foundation
(heritage.org). Paul Rosenzweig, a senior legal research Fellow in
Heritage's Center for Legal and Judicial Studies, is an adjunct
professor of law at George Mason University.

About the Author

James Jay Carafano, Ph.D.Vice President for the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, and the E. W. Richardson Fellow